It's Not Your Property

In an article appearing in U.S. News & World Report on May 27, 2015 “EPA Broadens Clean Water Regulations” describes the issuing of a rule to “clarify” which rivers, streams, ponds and wetlands are covered by the Clean Water Act.  Regardless of the intentions of and execution by the EPA to “protect” the environment, the EPA simply has no constitutional authority to exist.  Further, even if the EPA was constitutional, its actions are too often unconstitutional and opposed to the fundamental nature of government.

EPA began as an executive order by Richard Nixon to consolidate a variety of overlapping agencies and started with some 4,000 employees and a budget of $1 billion.  Today it is a bureaucratic behemoth with over 15,000 people and a budget in excess of $8.1 billion.  To put the size of the EPA in perspective, it is roughly equivalent in size to Bloomberg, the giant Wall Street firm – and the EPA is but one of hundreds of regulatory agencies.

The EPA is a perfect example of what the Anti-federalists warned regarding the inability of the Constitution to protect the people from an unceasing expansion of the federal government.  In response to the Anti-federalists a Bill of Rights was incorporated to prevent the national government from taking property without “due process” – the 5th Amendment.  This right is so fundamental it dates back to 1215 A.D. and the Magna Carta.

But today the EPA, as well as other agencies, just take without due process.  For example, in 2008 Mike and Chantell Sackett were building a house on their land in Idaho.  The land was properly permitted and was zoned for residential use.  Unfortunately for them the EPA issued a compliance order instructing the Sacketts to stop construction and return the 0.63 acre lot to its natural state or face fines of $32,500 a day.  There was no judicial hearing – just an order.

The Sackett couple wanted to go to court against the order.  However, the EPA issued an administrative compliance order which enables the government to command and control the use of private property without judicial review.  According to the Clean Water Act, the EPA says that Sackett may not challenge the EPA order until the EPA first seeks judicial enforcement – a process that can take years and during which the Sacketts face $32,500 in fines per day.  In other words, the EPA has the right to seek judicial enforcement of its order but the Sacketts do not have access to due process until after the EPA adjudication.  During this time the Sacketts can rack-up $23 million in fines in merely two years.

A fundamental reason people form societies and government is to protect private property from seizure.  It is a protected right in the Constitution, yet we have allowed politicians and unelected bureaucrats to act in capricious manner and take private property for political purpose.